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‘I didn’t lay down’: How a California man convicted of murder may have saved his own life

Death penalty mitigation offers juries a chance to see defendants in a different light.

Ernesto Martinez as a boy
Photo courtesy of the Martinez family

‘I didn’t lay down’: How a California man convicted of murder may have saved his own life

Death penalty mitigation offers juries a chance to see defendants in a different light.

The odds were stacked against Ernesto Martinez. Last fall, he was on trial for a capital offense in a place that has distinguished itself as a leader in condemning people to death: Riverside, California, a populous county just south of Los Angeles. For two out of the past three years, juries there have handed down the highest number of death sentences in the country, with five last year. According to the Death Penalty Information Center’s annual report, Riverside and two other jurisdictions—Clark, Nevada and Maricopa, Arizona—together imposed over 30 percent of the country’s death sentences in 2017.

Just two months before a jury would decide his fate, Martinez said, nobody was working to make the argument that he should live. “Riverside County is handing out death sentences left and right,” he told The Appeal in a phone interview from prison. “It started to make sense as to why.”

It took over two decades for his case to wind into a Riverside courtroom. In 1995, when Martinez was 19, he allegedly killed a cop on the side of an Arizona highway, fled that scene, and then fatally shot a gas station clerk just over the California border. An Arizona court in Maricopa County condemned him to death in 1998. (That case is in habeas appeals.) Twelve years later, prosecutors in Riverside extradited him, even though, as the local Riverside county paper framed it in March 2017: “If Martinez is sentenced to death in California, Arizona will still get to kill him first.”

Across the country, the number of people given death sentences has fallen significantly in recent decades—from 295 in 1998 to just 39 last year. Experts attribute this decline to several factors, including the disturbing number of death row prisoners who have been found not guilty through advances in forensics, such as DNA evidence: At least 162 people on death row have been exonerated since 1973. “That has to have had a chilling effect on jurors’ willingness to impose a death sentence,” said Sean O’Brien, a law professor at the University of Missouri-Kansas City and a preeminent expert on capital defense.

And, simply put, capital defense has gotten much better. A series of U.S Supreme Court decisions since the 1970s has raised the bar for effective capital counsel. “Our prosecutors didn’t get nicer, juries didn’t change, and judges didn’t get better,” O’Brien said. “The one thing we’ve changed in Missouri is defense counsel, and it has made a huge difference.”

Chief among the improvements has been the advent of a field of professionals who develop non-legal arguments for why an individual’s life is worth saving. Mitigation specialists, as they are called, cull documents like medical and school records, building a multigenerational history of their clients that can stretch back to slavery. They talk with often-reluctant witnesses who have known defendants at different stages of their lives to reveal personal histories that often include substance use disorders, mental illness, and abuse. The goal is to create empathy, working on an underlying premise that no person is evil, though some are very damaged. O’Brien said a “significant” portion of his clients had witnessed a parent or sibling’s murder. “People tend to divide the world between murderers and victims,” he said. “That’s a completely inaccurate dichotomy.”

Jimmy Lohman, who has been a capital defense lawyer in Texas and Florida for nearly four decades, echoed that sentiment. “You cannot imagine how many death defendants were traumatized in their youth. That could range from being beaten and molested by your mother’s boyfriend to stepping over dead bodies in your housing project,” he said.

Martinez was an unusual defendant. He has an IQ higher than 90 percent of the population, according to court records, and he trained himself to be a competent litigator during the two-plus decades he has lived behind bars. Starting in 2011, he represented himself in the criminal trial in California and quickly realized he needed a mitigation specialist. A good one. Martinez’s high IQ and competence may have even made things harder since mitigation claims often hinge on a client having a low IQ or mental illness.

After taking over his own case, he fought to hire a mitigation specialist at a rate of $75 an hour, almost double the unusually low $42 an hour the court was originally willing to pay. “No competent mitigation specialist would work for that 20 years ago, much less today,” said Richard Burr, a lawyer in Houston who has worked on capital cases since 1979. The going rate is $75-$100, sometimes higher, according to several people in the field.

“I fortunately was smart enough that I didn’t lay down and let myself get killed,” Martinez said. Ultimately, he was granted the rate increase, but only three months before a jury would decide if he lived or died.

The ‘Angel of Death Row’

The art and science of mitigation investigation was born and refined in the “modern era” of capital punishment, as the years after the U.S. Supreme Court re-approved capital punishment in 1976 after a four-year hiatus are called. Starting then, courts were mandated to have two phases to a capital trial: the first to determine if a defendant is guilty of a capital-eligible charge, and a second “penalty phase,” in which the jury decides if he or she should be condemned.

Historically, defense attorneys had only gathered personal information about the defendant within the narrow bounds of what is relevant to either an insanity defense, or what is called a “mens rea” defense, meaning that the person did not plan the actions or intend their consequence. But the penalty phase, where nearly anything about a defendant’s biography is fair game, offered room for a far more robust defense.

Initially, that potential went unrealized, O’Brien said. “Lawyers stay with what they know, what they’re comfortable with.” As a result, he added, “In the first round of capital trial cases, there was a lot of neglect of the penalty phase.”

In the 1980s, a small, tight-knit community of death penalty opponents was disappointed with how lawyers were using the penalty phase, so they took up the work themselves. At the forefront of this push was Scharlette Holdman, an anthropologist by training and famously salty character who is credited with being the first mitigation specialist. She would become known as the “Angel of Death Row.” (Holdman died last summer at age 70.)

According to Lohman, the defense lawyer, the line of quality mitigation specialists can be traced directly to Holdman. “It’s almost like if you haven’t worked with Scharlette, you’re not really qualified,” he said, “or someone who was trained by her. She’s the source of all knowledge.”

Holdman had a troubled past herself. She grew up in an abusive household with a racist father. As a landlord, he described evicting his black tenants as “going niggering,” according to the journalist David Von Drehle, who profiled Holdman in his book Among the Lowest of the Dead. As a young woman, she threw herself into civil rights activism, running several chapters of the American Civil Liberties Union, and then focused her energies on the death penalty—a path that may have started as a rebellion against her father but became intrinsic to her character.

“As we in local communities began to look for mitigation, we saw it as presenting the narrative of someone’s life, and we became acutely aware that it was a very specialized, complex undertaking,” Holdman told The New Yorker in 2011. “It requires not just knowledge and skill but experience in how you search for, identify, locate, recognize, and preserve the information.”

Holly Jackson, who eventually became Martinez’s mitigation specialist, is based in Los Angeles and is a Holdman protégée. “She had the ability to build a rapport and trust within an hour because she had the life experiences, because she knew what people were going through in terms of poverty and abuse and cultural stigmas,” Jackson said. “She taught me that, that human part of it. That was the most important part. If you can’t get the witness to talk with you, to engage with you, then you’re not going to get the information you need and you’re not going to get anywhere.”

As Holdman and her peers developed mitigation investigation methods, capital defense attorneys were increasingly seeking that type of expertise. “They were two groups that were going to find each other eventually, no matter what,” O’Brien said. Over the years, the standards were refined and codified in the American Bar Association’s guidelines. Today, having a mitigation specialist on a capital case is considered a constitutional right, but securing one isn’t always easy, as Martinez’s situation illustrates.

The hunt for help

In July 2017, two months before the guilt phase of his trial was scheduled to begin, Martinez petitioned the court to delay. Despite years of trying to secure a mitigation specialist, he still did not have one. The first specialist, who was supposed to do both fact and mitigation investigation, was a no-show, he explained. “I went eight months and never met this investigator,” Martinez said. That man eventually took himself off the case. A second specialist joined the case but was removed two years later because of personal legal troubles, Martinez said. A fact investigator assigned to the case, Jerry Monahan, was told by the Indigent Defendants Office in Riverside that he couldn’t help with mitigation.

So, Martinez and Monahan set out to find mitigation specialists. A capital defense lawyer in Arizona who had been following his case closely, suggested Jackson, but she was unwilling to work for the rate they were paying. “Our community has a policy: We will not go for less than certain amount or it will ruin it for everyone,” Jackson said, in reference to pay.

The judge, Charles Koosed, was not moved. “There’s no right to a mitigation expert,” he claimed at the July hearing. “If you can convince the pay panel to give you money for it, that’s fantastic. More power to you. But I’m not going to argue with you about any of this.”

The ACLU’s Capital Punishment Project, which had been monitoring all the death penalty cases in Riverside and contacted Martinez directly, disputed Koosed’s claim a month later in a friend of the court brief. “There is an indisputable, constitutional right to an adequate mitigation investigation in capital cases. This Court’s failure to grant the continuance necessary to provide for such an investigation is constitutional error,” the brief reads. It cites several Supreme Court cases and quotes an opinion written by Justice Sandra Day O’Connor in 1978:

“If the sentencer is to make an individualized assessment of the appropriateness of the death penalty, evidence about the defendant’s background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse.”

The brief also argued that Martinez should be provided the “funding needed to conduct a constitutionally adequate mitigation investigation.”

In the meantime, Martinez worked with yet another court-funded mitigation specialist. This one, too, didn’t work out.

It is unclear how Martinez eventually persuaded the judges to allot him a higher rate to pay for a better mitigation specialist. Jackson came on the case Oct. 10 at a rate of $75 an hour.

Around the same time, a defense lawyer, Richard Swanson, agreed to represent him during the penalty phase of his trial so he, Jackson, and the fact investigator, Monahan, set to work at breakneck speed—generally mitigation investigations take over a year, Jackson said. Martinez was convicted of murder on Dec. 4, 2017, and the penalty phase was to begin two months later.

“We worked day and night, the last couple of weeks,” Jackson said. “It was just really stressful.” One saving grace was that unlike most defendants, Martinez had been incarcerated for over 20 years—time that was both well-documented, and in his case, helped prove that he was a changed man.

The trial

During the eight days of emotional testimony, 17 witnesses revealed a portrait of a boy who was protective of those close to him but slowly devolved into a reckless teenager capable of murder after years of abuse and trauma.

Martinez grew up in a volatile home with a father who would verbally and physically abuse his children and their mother, family members testified at his trial. His mother used meth and heroin in the house when the kids were young, they said. Martinez was the second of four children and the oldest boy, and would try to physically intervene when their father was abusing their mother.

He spent a lot of time with his paternal grandmother who, a cousin explained, was one of the few adults in his life who didn’t struggle with alcohol or substance abuse. She made homemade tortillas for anyone who was around, and doted on her grandchildren. Another cousin described Martinez as his grandmother’s favorite; he would frequently retreat to the small house where she lived on the family’s property in Indio, California. She died from a stroke in 1985 when Martinez was 9 or 10. “He just closed up,” his cousin Barbara Garza told the jurors on the second day of testimonies.

Shortly after his grandmother’s death, Martinez’s family moved to a small town—Globe, Arizona. Here, both parents got sober and became devoted to attending a local Evangelical church. They took the children there five days a week. But while Martinez’s father put on a pious front at church, his sisters testified, he was still abusive and controlling at home.

In 1989, when Martinez was around 14, his best friend committed suicide. After that, “he was distant,” his younger brother Ramon Martinez said. Both figuratively and literally, “he wasn’t really around after that.”

On the seventh day of testimonies, his sister Julia Negrete took the stand and described her tumultuous relationship with her brother. In their elementary school years, they were allies, she said, trying to protect one another from abuse. But in junior high school, they took different paths and their relationship frayed. She escaped to her friends’ houses, and studied hard so she could move away—which she did when she was 17. Martinez acted out. He was in and out of juvenile hall. She couldn’t remember exactly when he left the house, “Sometimes he was there, sometimes he wasn’t. I couldn’t tell you when that happened—I didn’t track him. I didn’t care if he was there or not, to tell you the truth.”

It was important to hear testimony from his siblings, Jackson said, because they were the only people who could paint a picture of his past. “We really had to get [the jury] to know his post-traumatic stress from living in the shadow of chronic violence, so that they would understand how he would overreact,” she said.

Because his case was so prolonged, the jury could also consider Martinez’s time in prison, where he had spent over half his life. That did not universally work in his favor. In 2011, he was charged with stabbing his cellmate, but Martinez argued it was self-defense and was acquitted last December.

But the jury also learned about meaningful relationships he had formed over the years. Poignant testimony came from a 26-year-old, Michael Lopez, whose mother had briefly dated Martinez and who considered him a father figure. When Lopez was in junior high school, he began to accompany his mother when she visited Martinez in prison. Martinez talked Lopez through the aftermath of his parents’ ugly custody battle, Lopez testified, and his problems with his father.

“He’s always been supportive,” Lopez said. “He’s been instrumental in helping me to choose growth over [the] anger and bitterness that I felt in my early years.” Martinez sent him books to read, and through letters and during frequent visits, encouraged him to go to college, where he studied English literature.

After one day of deliberations, on March 1, the jury sentenced Martinez to life in prison rather than the death penalty. He later said he felt vindicated by the decision. “In Arizona, one person decided I should be executed—that I was not fit to live,” he said. “In California, 12 people decided I was.”

The Riverside County District Attorney’s Office declined to comment because Martinez’s criminal case is pending appeal.

That same month, Riverside County raised its standard mitigation specialist rate to $75 an hour “to bring reimbursements more in line with average rates in surrounding counties,” the court’s public information officer wrote in an email.

Soon after the trial, Jackson moved on to her next case. The states that have clung to the death penalty don’t seem to be changing course, so high-quality mitigation specialists remain in demand.

Lohman, the capital defense lawyer, considers them essential. “The proper way to do mitigation is that you go back as many generations as you can in a person’s life, as far back as you can go, and put together the definitive story of where this person came from,” he said. “If the trial team does their job correctly, you should never get a death sentence.”

Criminal Justice Reformers Get A Chilly Reception In California

Across the state, most incumbents successfully fended off progressive challengers during the June 5 primary.

Criminal Justice Reformers Get A Chilly Reception In California

Across the state, most incumbents successfully fended off progressive challengers during the June 5 primary.

California’s Super Tuesday election brought disappointing results for candidates hoping to reform the state’s criminal justice system. In recent years, California has taken a series of steps designed to make the system more fair: shortening sentences for incarcerated people, for instance, and diverting low-level offenders from lengthy stays in prison. But the state’s district attorneys have consistently stood in the way of reform.

Heading into yesterday’s primary, a handful of challengers hoping to unseat prosecutors across the state aimed to change that dynamic. Meanwhile, several reformer candidates also vied for sheriff and judicial positions, looking to remake the path from arrest to adjudication. But by the end of Tuesday evening, it was clear that the nascent national movement to elect reformer district attorneys was heading for major losses. Below, we round up the major criminal justice races and ballot measures from across California.

In San Diego County, public defender Geneviéve Jones-Wright is poised to lose to incumbent District Attorney Summer Stephan. Stephan, who the all-Republican county Board of Supervisors appointed last year, was heavily supported by law enforcement groups that threw hundreds of thousands of dollars into the race. Stephan rose to prominence as a “human trafficking” expert, but has instead focused almost solely on criminalizing sex work, saying she believes there’s no such thing as “voluntary” sex work. Jones-Wright ran on a platform of reforming the use of cash bail, ending the criminalization of homelessness, and testing the county’s large backlog of rape kits. In the county’s sheriff’s race, incumbent Sheriff Bill Gore seemed likely to defeat reform candidate Dave Myers. Gore has presided over a county jail system where since 2007 more than 120 people have died in custody . Myers, a commander at the San Diego County Sheriff’s Department who was running on a platform to decriminalize homelessness and increase drug treatment for arrested users, said he was reassigned to a “broom closet” after the announcement of his candidacy.

In San Francisco County, four public defenders running to unseat Superior Court judges appointed by Republican governors were handily defeated. The candidates, who were all either Black or Latinx, faced pushback from local Democrats worried about the politicization of the bench. The candidates argued they were trying bring new perspectives to a city with stark racial disparities in policing. Local reformers did rack up two wins, however: Proposition F, which guarantees the right to legal counsel for residents facing eviction, won with 56 percent of the vote after a strong push by the San Francisco chapter of the Democratic Socialists of America. Proposition H, which would have given San Francisco police officers less restrictive guidelines for their use of stun guns, and was promoted by the officers’ union, was defeated.

In Alameda County, incumbent Nancy O’Malley handily defeated civil rights lawyer Pamela Price. O’Malley faced criticism after it was revealed that her campaign had accepted $10,000 from Fremont cops while investigating them in connection to two fatal shootings. Her challenger, Price, highlighted the racial disparities in O’Malley’s charging practices, promising wholesale changes in the way the county prosecutes young people.

In Sacramento County, Anne-Marie Schubert, the incumbent district attorney, fended off  Noah Phillips, a prosecutor who ran on a platform calling for increased police accountability. Schubert, a Republican, had been endorsed by many of the city’s Democratic politicians, but came under severe scrutiny after the police killing of Stephon Clark in March. Schubert then centered her campaign on taking credit for the apprehension of the alleged “Golden State Killer,” running campaign ads that said, “She protects us.”

In Santa Clara County, Judge Aaron Persky was recalled from the bench following backlash by activists over what they viewed as a “lenient” sentence of a Stanford student to six months in jail for sexually assaulting and attempting to rape an unconscious woman outside a party at the university. But critics of the recall say its supporters underestimate the impact of the sentence on the life of the student, Brock Turner, and are seeking vengeance over justice.

In Contra Costa County, incumbent District Attorney Diana Becton is most likely headed to a runoff against Paul Graves in November. Becton, a judge who was appointed district attorney in September, had strong support from reform groups, who applauded her stances on pursuing treatment instead of jail time, and changing how the county prosecutes low-level crimes. Graves, who was supported by law enforcement groups, spent 22 years as a prosecutor at the Contra Costa DA’s office, where his former boss, Mark Peterson, had resigned in disgrace after taking thousands of dollars from his campaign account and spending it on meals, clothes, and other personal needs.

In Yolo County, it appears incumbent Jeff Reisig has defeated public defender Dean Johansson, although with a high amount of absentee ballots still out, the vote may not be final for weeks. Reisig is part of a statewide movement to roll back parts of Proposition 47, which reduced penalties for certain crimes, and he is actively circumventing it by charging people with felonies for low-level offenses.

And finally, in San Bernardino County, it appears that challenger Jason Anderson has defeated incumbent Michael Ramos. Anderson, the most conservative of the reform candidates on the ballot this June, has called for more resources to veterans and mental health courts as well as bolstering drug court funding. Ramos has been a vocal death penalty supporter, and has spoken out against the possible exoneration of Kevin Cooper, who was convicted in a high-profile murder case rife with police misconduct.

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High Schooler Faced 25 Years on the Sex Offender Registry--For Engaging In Oral Sex

At a Pennsylvania school, an 18-year-old female student was arrested for a consensual sexual act with a 16-year-old boy.

High Schooler Faced 25 Years on the Sex Offender Registry--For Engaging In Oral Sex

At a Pennsylvania school, an 18-year-old female student was arrested for a consensual sexual act with a 16-year-old boy.

In February, 18-year-old Mariea Starr, a senior at Waynesboro Area Senior High School in Waynesboro, Pennsylvania, faced a terrifying, life-altering punishment: the possibility of 25 years on the sex offender registry.

But the offense in question was not a sexual assault or the molestation of a child; instead, it stemmed from a Dec. 7 incident in which Starr was caught by another student allegedly performing oral sex on a boy in a school stairwell.

A female student told the school’s assistant principal that she witnessed Starr getting up from her knees in the stairwell while the boy quickly pulled up his pants, according to an affidavit of probable cause filed by Officer Matthew Gordon of the Waynesboro Area School District Police.

Because Starr had turned 18 two months before the incident and the boy she allegedly engaged in oral sex with, while also a high-school student, was a minor, Starr was charged with misdemeanor open lewdness and felony unlawful contact with minors which carries a Tier II sex offender designation.

Tier II sex offenders are considered a moderate risk of reoffending but are nonetheless subject to registration requirements for 25 years, including being photographed by Pennsylvania State Police twice a year.

While statutory sexual assault in Pennsylvania requires the victim to be under 16 years old and that there be more than a four-year age difference between the victim and the defendant, the charge of unlawful contact with minors stipliates only that the defendant be 18 years or older and the victim be under 18.

Gordon brought the case without oversight from the district attorney’s office or school district administration because in Pennsylvania some school police officers can file criminal charges through a magisterial district judge without DA review. The magisterial district judge holds a preliminary arraignment, where bail is set, and a preliminary hearing to determine if there is enough evidence to proceed to the trial court level.

District attorneys prosecute these cases but are not required to take part in them until they reach the trial court level.

The point at which the district attorney gets involved depends on the charges and procedures set up by individual Pennsylvania counties.

Franklin County District Attorney Matthew Fogal told The Appeal that his office did not review Starr’s case until the preliminary hearing in March.

Furthermore, no one in the school district has the duty to review the possible penalties against students like Starr and make the decision to either support the student or approve the charges, according to Waynesboro Area School District Superintendent Todd Kline.

On April 11, however, Fogal reduced the charges against Starr to open lewdness. She was sentenced to 12 months’ probation and will not be placed on the registry.

Nonetheless, Starr will graduate from high school with a criminal record, which will significantly affect her educational and job opportunities. If she applies to college, Starr will have to disclose her conviction on her college application and will compete against students without a conviction. Her criminal conviction may also limit her ability to receive student financial aid. Students with a misdemeanor or felony conviction may be barred from receiving financial aid administered through the Pennsylvania Higher Education Assistance Administration, according to the National Inventory of the Collateral Consequences of Conviction. And when she enters the job market, Starr will be in the running against applicants who do not have a criminal record.

Starr is far from the only student that Gordon, the school police officer, has sent into the criminal justice system.

More than 70 student arrests have been made since Gordon’s tenure began in 2014, according to annual safety reports filed the district with the Pennsylvania Department of Education.

The likelihood that a disciplinary incident would result in an arrest or a referral to law enforcement increased roughly 21 percent in Gordon’s first three years as an officer compared to the three years before he began the job, safety reports show.

In 2016, Gordon, a retired Pennsylvania State Police trooper, filed misdemeanor forgery charges against two students for simply providing fake doctors notes to excuse their absence from school.

In one case, the student confessed to faking the notes before the end of the school year, but Gordon waited until after the student graduated to file charges.

Gordon also charged two students with possessing weapons on school grounds.

In both cases, however, a knife was found secured inside a vehicle on school grounds. There is no court record indicating that the students attempted to bring a weapon into the school, brandished it on school grounds or attempted to assault another student with a weapon.

In the most recent weapons possession case, the student told Gordon that he had been working on his vehicle but forgot to remove the knife before coming to school, according to an affidavit of probable cause filed by Gordon.

The Waynesboro school district created its own police in 2014 in a 5-4 vote, according to school board meeting minutes.

In a petition to form its police department, the district stated it needed a police officer to “protect the students, staff, and property … and maintain an orderly and safe learning environment.”

But annual safety reports, which date back to the 1999-2000 school year, show that there have been only two reported incidents where a firearm was brought on school grounds. And the district has never been involved in a school shooting situation.

One board member who voted against the measure argued it would lead to more criminal charges against students while another said she felt the district was treating students “like criminals,” according to the Herald-Mail.

“There is nothing that shows [police in schools] makes students safer,” Barbara Fedders, assistant professor at the University of North Carolina School of Law, told The Appeal.

Fedders cited research by Jason Nance, a University of Florida Levin College of Law associate professor, that found that when police are present in school, disciplinary issues are much more likely to be referred to law enforcement instead of being handled internally. For example, 19 percent of attacks Nance reviewed in schools without a police officer were referred to law enforcement compared to 50 percent in schools with an officer.

In his paper “Students, Police, and the School-to-Prison Pipeline,” Nance pointed to evidence that police officers in schools can actually lead to more students feeling alienated, which can create distrust and in turn more disorder and violence.

“I worry that putting police in schools is going to seem like the moderate solution as we talk about things like arming teachers” in the wake of school shootings, Fedders said.

Indeed, the rate of student disciplinary incidents has increased since officer Gordon was hired in 2014, according to the annual safety reports. Twenty times as many students were issued citations and five times as many students received a probation sentence for incidents at the school district during the 2016-17 school year compared to the year before Gordon was hired, according to annual reports filed the district with the Pennsylvania Department of Education.

This means that, along with a diploma, dozens of students will carry a criminal record with them as they graduate from high school.

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